Kozlowski v. State, 7 Div. 817.

• Decision Date: 21 May 1946
• Docket Number: 7 Div. 817.
• Parties: KOZLOWSKI v. STATE.
• Court: Alabama Court of Appeals

27 So.2d 811

32 Ala.App. 453

KOZLOWSKI v. STATE.

7 Div. 817.

Alabama Court of Appeals

May 21, 1946

Affirmed on Mandate Nov. 12, 1946.

Rehearing Denied June 25, 1946.

Beddow Ray & Jones, of Birmingham, for appellant.

Wm. N. McQueen, Atty. Gen., and MacDonald Gallion, Asst. Atty. Gen., for the State.

HARWOOD Judge.

The appellant James Zigsmund Kozlowski was tried on an indictment charging him with murder in the first degree of his wife Willodeen Kozlowski. The jury found him guilty of manslaughter in the first degree and fixed his punishment at imprisonment in the penitentiary for ten years.

Kozlowski spent his early life in New Jersey. After completing the eighth grade in school he led a peripatetic existence working on a farm for his keep, in a sawmill, and in a snuff mill. In 1937 or 1938 he enlisted in the United States Army and was stationed in the Panama Canal Zone. Through a fellow soldier he initiated a correspondence with a young lady in Tennessee. She later became his wife and the victim of the tragedy about which this case centers. Kozlowski was discharged from the army after about six months service, he alleges because of 'nervousness' resulting from tropical duty. Thereafter he returned to New Jersey and after about two years came to Tennessee and met the young lady with whom he had corresponded. After several months they were married and established their own home, Mrs. Kozlowski being employed as a school teacher at the time. Appellant alleges he was unable to find work and a few months after his marriage he enlisted in the Canadian Army. He alleges Mrs. Kozlowski received $79 per month as an allotment during his Canadian Army service. However after a few months Kozlowski was discharged from the Canadian Army, the reason for his discharge not being clear, though on cross-examination he would not deny that it was because he was found drunk on duty. Thereafter he and his wife lived in New Jersey for about a year, appellant being employed during this time. From there they moved eventually to Sylacauga where appellant was employed in the powder plant.

The evidence introduced by the State was to the effect that on May 18, 1945 Mrs. Kozlowski had engaged Sara Jane Williams, a neighboring girl, to stay with their two young children while she and Kozlowski went to Birmingham during the afternoon and part of the night. When Miss Williams arrived she was told that the Kozlowskis had altered their plans and had decided to go fishing. Kozlowski went into the kitchen and mixed some dough balls for bait, and Mrs. Kozlowski changed from her dress into slacks.

L. V. Rudd, a bus driver, testified they rode his bus to the powder plant, and that during the ride he heard Mrs. Kozlowski insist that they return to Sylacauga. However, at the end of the line Mrs. Kozlowski followed Kozlowski out of the bus. To get to the Coosa river it would be necessary to transfer to the river bus at this point.

Rudy Burks, owner of a fishing camp on the Coosa river, testified that the Kozlowskis arrived at his camp around 6 p. m. Kozlowski wanted to rent a boat and he gave him the keys to three boats with the understanding that Kozlowski would return the keys after selecting a boat. Kozlowski did not return the keys, and he next saw him around midnight when Kozlowski returned to his place accompanied by James Abbott. At this time Kozlowski gave Burks a dollar bill to pay for some telephone calls he or Abbott was making. This dollar bill was wet. Kozlowski's trousers were wet, but this witness could not say whether Kozlowski's shirt was wet as it was of a kind that 'it would have been hard to detect whether it was wet or dry.'

Pearl Hampton, a colored woman, was fishing on the river bank near the boat landing. She saw a man and woman enter a boat late in the afternoon, the woman extending her hand and being helped into the boat by the man. She saw the couple paddle off down the river, and when they reached a point opposite her the man laid the paddle down and picked up a small brown sack. She could not see what he got out of the sack, and the last she saw of them the boat was floating on down the river. Shortly after this a thunder storm came up and she went home. The storm was severe, but she did not know how long it lasted.

Dyneamer Chancellor, a colored boy also fishing on the bank at this time, saw this couple in the boat. The last he saw of them the man was fishing with a hand line, the woman sitting with her face in her hands. After this the storm came and his mother called him home.

Fred Aubrey testified that appellant came to the convict camp on the Coosa river, where he was employed, between 8:30 and 9 p. m. on the night of the tragedy and requested help. Appellant told Aubrey that his wife was in the river and he needed help. Aubrey said Kozlowski told him 'there was a clap of thunder came and she ran towards him and threw them out into the river and turned over the boat.' Appellant's shirt which was a sport shirt of thin material, 'looked like a man that had been running and had sweated a little bit,' though the sleeves 'would kind of stick out.' Aubrey called the police at Childersburg and then took appellant to the home of Louis D. Evans. Evans in turn called a Mr. Burns and T. M. Dobbs, and these three went with appellant to the river.

A number of other persons also gathered on the river bank on hearing of the tragedy. Without detailing their testimony we think a fair summary of their evidence was that Kozlowski was confused as to the exact location of the place where he alleged his wife had fallen in the river. He could not locate the willow tree to which he had tied the boat when he returned to the bank. However the evidence showed that the bank in this vicinity was lined with willow trees, all of them more or less similar in appearance. When asked where his wife went in the river Kozlowski would only reply 'out there.'

As to the condition of his clothes, D. H. Simmons testified that a fire had been built, the night being chilly, and that when Kozlowski warmed himself near the fire his clothes steamed from the waist down, and he saw Kozlowski light a cigarette taken from his shirt pocket.

J. T. Finn touched Kozlowski's shoulder as he staggered against him, and his shirt felt dry.

T. M. Dobbs said Kozlowski's shirt appeared dry to him.

Louis D. Evans testified that in his opinion the thunder and lightning ceased around 6:30 p. m. on the day Mrs. Kozlowski was drowned. Kozlowski and Aubrey came to his house near the convict camp between 8:30 and 9 p. m. seeking help. When he asked Kozlowski on the way to the river if his wife had drowned Kozlowski replied 'I called her but I couldn't make her answer.' When he asked Kozlowski if the boat had turned over or capsized Kozlowski replied, 'Yes, we both fell out.' After the boat had been found at the river, and Evans pointed out to Kozlowski that it had not turned over, Kozlowski replied 'No * * * she got scared by the lightning and she got up and started towards him and fell out and he jumped out of the boat * * *.' When this witness asked Kozlowski where his fishing poles were Kozlowski reached in his pocket and pulled out a drop line.

H. J. Adair, J. K. Davis, and James E. Elliott testified that prior to the death of Mrs. Kozlowski appellant had told them respectively that he had asked Mrs. Kozlowski for a divorce, but that she had refused his request.

Mrs. J. T. Lancaster and Mrs. A. L. Cottle were permitted to testify without objection that on several occasions Mrs. Kozlowski had come to each respectively, and in tears had told them that Mr. Kozlowski was going with other women, and detailed her distraught state over her marital difficulties. Appellant was not present during these conversations, and such testimony was elementary hearsay. No objections to such testimony were interposed however, and therefore the impropriety of the admission of this testimony is not reviewable.

Mrs. D. E. Smithson, sister of Mrs. Kozlowski, testified without objection that while Mr. and Mrs. Kozlowski were living in Sylacauga Mrs. Kozlowski had told her of a night when appellant had wanted her to go for an automobile ride. Kozlowski had started for the car carrying a jar of gasoline. Mrs. Kozlowski refused to go, charging that Kozlowski intended to kill her and burn her body. About two weeks after Mrs. Kozlowski had drowned Mrs. Smithson and Mr. Smithson had asked appellant about this instance, and why he carried the gasoline to the car. Kozlowski according to Mrs. Smithson would only reply, 'Well I just put it there.' Mrs. Smithson had gone to the Kozlowski's house the night of her sister's death, and while there had washed the clothes Kozlowski had worn on the river trip. She said she found his trousers and shorts dingy from muddy water, but his shirt was dry from the waist up.

There was also evidence that about a year prior to his wife's death Kozlowski had taken out a $500 life insurance policy on his wife with himself as beneficiary, the policy to pay double indemnity in case of accidental death of Mrs. Kozlowski.

J. M. Rash, an expert connected with the State Department of Toxicology, performed an autopsy upon the body of Mrs. Kozlowski after its recovery from the river three days after the drowning. He found no signs of violence on the body, no evidence of poisoning, and in his opinion her death resulted from drowning.

Statements by Kozlowski concerning the drowning of his wife made to W A. Ballow, State Highway Patrolman, and Earl Howell, Deputy Sheriff of Talladega County, were related by these two witnesses, the voluntariness of such statements having been first established. The account given to each officer was substantially the same and was to...